An attorney representing the hospital speaking at a press conference Wednesday said he was “astonished” by the Attorney General's accusation they were obstructing the investigation by seeking guidance.

The hospital filed a petition in Merrimack Superior Court on Aug. 29 asking a judge to grant a protective order shielding the medical records of its patients from state health officials.

The state is still trying to determine the scope of the outbreak, which surfaced in May, and has led to infections in at least 32 Exeter Hospital patients.

A former Exeter Hospital technician has been charged with spreading the virus. He is accused of stealing hospital drugs, injecting himself, then placing syringes contaminated with his blood back into the laboratory, where they were used on patients.

The hospital says the state's Division of Public Health Services has requested broad access to medical records that contain confidential health information. Releasing the information would constitute a breach of both state and federal laws, according to the hospital.

In motions filed Tuesday in Merrimack Superior Court, staffers from the attorney general's office refuted that claim. They argue state and federal laws expressly provide health officials with the power to review medical records amid a viral outbreak.

In response, attorney Scott O'Connell, of the legal firm Nixon Peabody LLP, said Exeter Hospital has nothing to hide, and is eager to assist the state's investigation, but it was forced to seek help from a judge because “as time has gone on, the state has asked for more than it's legally entitled to have.”

“Exeter wants to know what happened as much as anybody, but at the same time, we are fiduciaries for our clients' information,” O'Connell said Wednesday at a press conference on the campus of the hospital.

“Exeter maintains sacrosanct, confidential, private information about the care it has given its population of patients, and we take that responsibility of maintaining that information seriously,” he said.

According to O'Connell, under New Hampshire law, the hospital is prohibited from furnishing patient records to anyone — including state health officials — unless certain “threshold requirements” are met. Among those requirements is the need to spell out why the patient records being sought are linked with the hepatitis C outbreak, he said.

In some instances, the hospital must also obtain the consent of patients before releasing the records, O'Connell said. For example, New Hampshire law protects records regarding treatment for substance abuse, genetic testing, HIV status, sexual assault and psychiatric evaluation, he said.

O'Connell said the state wants access to Exeter Hospital's entire medical record system, and is unwilling to narrow its request or to allow the hospital to remove protected information from the records.

“We want to help the state, but the state is not meeting us in the middle,” he said. “They are not making their requests surgical, discrete, tailored to get only that which is minimally necessary for their legitimate interests.”

O'Connell also categorically denied an assertion that Exeter Hospital is using its litigation in Merrimack Superior Court as “an excuse to absolutely refuse to provide any information to Public Health.” That charge was leveled in a sworn affidavit from State Epidemiologist Dr. Sharon-Alroy Preis.

O'Connell said he has attempted to establish new ground rules with the state regarding patient records, but the state has refused to identify which patient records, or which portions of those records, it is seeking.

“These are the minimum requirements under state law and federal law to make it available to the state epidemiologist and her team,” O'Connell said. “In the absence of some level of cooperation and some understanding in Concord that they've got an obligation to help us maintain the privacy of these patient records, we are left with the only option of going to state court for assistance.”

O'Connell said he was “astonished” to read an assertion from the state attorney general's office that the hospital has obstructed investigators. Nothing could be further from the truth, he said. Exeter has worked cooperatively with the state, and was willing to accept an expedited court ruling regarding patient records, O'Connell said. The fact that it's taken the state a month to respond to Exeter Hospital's petition is evidence that the issues involved are complex, he said.

“We did what our system requires,” O'Connell said. “We sought a judge to help us. Ladies and gentleman, that's not obstructing justice — that's using justice. That's using the system of laws that we have in this state and this nation to get a ruling from a judge authorized to tell us where the balancing has to be struck for these competing concerns.”

Mark Whitney, vice president for strategy and community relations at Exeter Health Resources, said the hospital anticipates a judge will rule that the state's request for patient records far outreaches its legal rights. Whitney said the judge is likely to rule that the state must make a clearer connection between the records sought and the hepatitis C outbreak.

Whitney said New Hampshire citizens have high regard for medical privacy, and the state has adopted a patients' bill of rights that has more stringent disclosure requirements than federal law. Exeter Hospital administrators wish to continue assisting the state's investigation, Whitney said, but they also have a responsibility to protect the privacy of tens of thousands of patients.

“Exeter Hospital absolutely wants to work with state officials to get to the bottom of what's happened here,” Whitney said, “but that's why we actually asked a judge for guidance to help us balance the hospital's responsibility related to protecting patient privacy and the state's request for getting more information from our electronic medical record systems.”